| United Nations | A/50/681 |
General Assembly
Distr. GENERAL
26 October 1995
ORIGINAL:
ENGLISH
Fiftieth session
Agenda item 112 (b)
HUMAN RIGHTS QUESTIONS: HUMAN RIGHTS QUESTIONS,
INCLUDING ALTERNATIVE APPROACHES FOR IMPROVING
THE EFFECTIVE ENJOYMENT OF HUMAN RIGHTS AND
FUNDAMENTAL FREEDOMS
Recommendations made by the Special Representative of the
Secretary-General for human rights in Cambodia on matters
within his mandate
Report of the Secretary-General
CONTENTS
Paragraphs Page
I. INTRODUCTION ......................................... 1 - 74
II. SIXTH MISSION TO CAMBODIA OF THE SPECIAL
REPRESENTATIVE OF THE SECRETARY-GENERAL ..............8 - 105
III. HUMAN RIGHTS RECOMMENDATIONS ......................... 116
IV. ACTION TAKEN ON EARLIER REPORTS ......................12 - 146
V. UPDATE ON SELECTED HUMAN RIGHTS ISSUES ............... 15 - 648
A. Right to health ..................................15 - 178
B. Right to education ............................... 18 - 219
C. Right to work .................................... 22 - 239
D. Right to housing ................................. 24 - 2910
95-33049 (E) 241195/...
*9533049*
CONTENTS (continued)
Paragraphs Page
E. Right to a healthy environment and to sustainable
development ...................................... 30 - 3112
F. New laws and practices ........................... 32 - 3413
G. Independence of the judiciary and the rule of law 35 - 3814
H. Prisons and other custodial institutions ......... 39 - 4316
I. Freedom of expression and the Press Law .......... 44 - 4717
J. Right to be elected and to take part in government 48 - 5220
K. Vulnerable groups, including women, children and
minorities ....................................... 53 - 5722
L. Reporting obligations under international
covenants ........................................ 5824
M. Security issues .................................. 59 - 6424
VI. RECOMMENDATIONS ......................................65 - 9026
A. Right to health .................................. 6526
B. Right to education ............................... 6627
C. Right to housing ................................. 6727
D. Right to a healthy environment ................... 6827
E. New laws and practices ........................... 69 - 7127
F. Independence of the judiciary .................... 72 - 7428
G. Prisons and other custodial institutions .........75 - 7629
H. Press Law and freedom of expression .............. 77 - 7829
I. Right to be elected and to take part in government 79 - 8030
J. Vulnerable groups ................................ 81 - 8230
K. Reporting obligations ............................ 8331
L. Security issues .................................. 84 - 8731
M. Ongoing technical advice and assistance ..........88 - 9032
CONTENTS (continued)
Page
Annexes
I. Programme of the sixth mission of the Special Representative of
the Secretary-General for human rights in Cambodia,
5-16 August 1995 ...............................................34
II. Human rights recommendations 1994-1995 .........................38
III. Letter dated 13 October 1995 from the Royal Government of
Cambodia to the United Nations Centre for Human Rights .........42
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A/50/681
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I. INTRODUCTION
1. The General Assembly, in its resolution 48/154 of 20 December 1993,
entitled "Situation of human rights in Cambodia", welcomed the
establishment in Cambodia of an operational presence of the Centre for
Human Rights of the Secretariat and requested the Secretary-General to
assure the protection of human rights of all people in Cambodia. On 1
October 1993, the Centre established its office in Cambodia in Phnom Penh.
On 23 November 1993, a Special Representative for human rights in Cambodia,
Mr. Michael Kirby (Australia), was appointed to undertake the tasks set out
in Commission on Human Rights resolution 1993/6 of 19 February 1993. These
tasks include:
(a) To maintain contact with the Government and people of Cambodia;
(b) To guide and coordinate the United Nations human rights presence in
Cambodia;
(c) To assist the Government in the promotion and protection of human
rights.
2. Pursuant to the request of the General Assembly in resolution 48/154,
the Special Representative has reported successively to the General
Assembly at its forty-ninth session (A/49/635 and Add.1) and to the
Commission on Human Rights at its fiftieth 1/ and fifty-first 2/ sessions.
3. The report of the Secretary-General to the General Assembly on the role
of the Centre for Human Rights in assisting the Government and people of
Cambodia in the promotion and protection of human rights, submitted
pursuant to General Assembly resolution 49/199, is contained in document
A/50/681/Add.1.
4. The General Assembly, in its resolution 49/199 of 23 December 1994,
entitled "Situation of human rights in Cambodia", requested the
SecretaryGeneral to report to the General Assembly at its fiftieth session
on the recommendations made by the Special Representative on matters within
his mandate. The Assembly also requested the Special Representative, in
collaboration with the office in Cambodia of the Centre for Human Rights,
to undertake an evaluation of the extent to which the recommendations made
by the Special Representative in his report to the Assembly and those
contained in his first report to the Commission on Human Rights 3/ had been
followed up and implemented. The present report is submitted in accordance
with those requests.
5. The Special Representative, in accordance with the previous practice,
took the occasion of his sixth mission to Cambodia (5-16 August 1995) to
visit, in addition to the capital Phnom Penh, the following provincial
areas of Cambodia: (a) the Province of Kampot; (b) the Province of Kampong
Cham; and (c) the Municipality of Kep.
6. As requested by the General Assembly in paragraph 20 of its resolution
199/49 and by the Commission on Human Rights in paragraph 22 of its
resolution 1995/55 of 3 March 1995, he also paid particular attention to
vulnerable groups, including children, squatters and other homeless people.
The programme of the sixth mission is contained in annex I to the present
report.
7. The Special Representative wishes to express his appreciation to the
Government of Cambodia for the access which was provided to Government
officials. During his sixth mission he met with the Chairman and the First
Vice-Chairman of the National Assembly, ministers, the governors of Kampot
and Kampong Cham Provinces and of Kep Municipality, many national and local
officials as well as representatives of non-governmental organizations
(NGOs) and citizens. Once again, the Special Representative would record
the great honour which he was accorded by having been received in audience
on 16 August 1995 by His Majesty Preah Bat Samdech Preah Norodom Sihanouk
Varman, King of Cambodia. His Majesty's constitutional position as
protector of rights and freedoms and guarantor of international treaties
ratified by Cambodia, as well as his many interventions in the defence of
human rights, have continued to encourage and inspire the work of the
Special Representative and of the office of the Centre for Human Rights.
II. SIXTH MISSION TO CAMBODIA OF THE SPECIAL REPRESENTATIVE
OF THE SECRETARY-GENERAL
8. The present report is based on the findings of the Special
Representative on his sixth mission to Cambodia in August 1995, as well as
his ongoing observations and information provided to him by the Government
of Cambodia, the Centre for Human Rights and other sources.
9. In March 1995, the Government of Cambodia addressed a letter to the
Secretary-General, signed by the two Prime Ministers, to explore the
possibility of the Centre terminating its mandate in the country by the end
of 1995 and continuing its technical cooperation activities from its
headquarters in Geneva. In their letter, the Co-Prime Ministers indicated
that they would continue to welcome the visit to Cambodia of the Special
Representative and would continue to accord every cooperation to him and to
visiting experts from the Centre. Consequentially, the Secretary-General
appointed his Special Envoy, Mr. Marrack Goulding, Under-Secretary-General
for Political Affairs, to visit Cambodia to discuss the suggestion. The
Special Envoy's mission resulted in agreements not only on the maintenance
of the office in Cambodia but also on various steps to be taken to enhance
the relationship between the Government of Cambodia and the Centre (see
A/50/681/Add.1, paras. 8-10). In the spirit of the agreement for enhanced
consultation, the Special Representative during his sixth mission offered
to call to particular notice matters included in the present report which
might have required special attention and comment by the Government.
10. Unfortunately, it did not prove possible for the Co-Prime Ministers to
receive the Special Representative. However, he met with several other
ministers. As in the past, an advance copy of a draft of the present
report was provided to the Government. The Centre for Human Rights, in
pursuance of the aforesaid agreement, has drawn to notice the matters there
contemplated.
III. HUMAN RIGHTS RECOMMENDATIONS
11. During the period since his last report to the General Assembly, the
Special Representative has regularly submitted to the Government of
Cambodia confidential letters containing recommendations on human rights
issues. Unfortunately, as mentioned in that report (A/49/635, para. 46)
difficulties appear to have continued within the Administration of Cambodia
in the consideration of those recommendations. Although receipt of
recommendations has been acknowledged in some cases, the Special
Representative is unaware of the action, if any, taken upon most of them.
The recommendations submitted between August 1994 and August 1995 are
contained in annex II to the present report, together with a summary of any
action known to have been taken by the Government. The Special
Representative will continue, where appropriate, to keep those
recommendations under review. He suggests that the Government of Cambodia
set in place a regular procedure for the reception, consideration and
follow-up of the recommendations. Consideration of them should be included
in the above-mentioned enhanced consultations between the Government and
the Centre for Human Rights. If possible, technical assistance should be
offered to the Ministry of Foreign Affairs by the Centre for Human Rights
to assist in analysing the information.
IV. ACTION TAKEN ON EARLIER REPORTS
12. The General Assembly, in paragraph 6 of its resolution 49/199,
requested the Special Representative, in collaboration with the office in
Cambodia of the Centre for Human Rights, to undertake an evaluation of the
extent to which the recommendations made in his reports were followed up
and implemented. The Commission on Human Rights adopted a similar
recommendation in its resolution 1995/55, paragraph 7. Having regard to
the very many recommendations that have been made by, and the resources
available to, the Special Representative and the office, it has not been
possible to complete this task in time for the present report. The Special
Representative has set in motion, in collaboration with the Centre, the
preparation of a response to the request of the General Assembly and the
Commission on Human Rights. That evaluation will have to be discussed with
the Government of Cambodia in the spirit of the agreement reached between
the Government of Cambodia and the Special Envoy of the Secretary-General
of the United Nations. An opportunity for input and commentary will be
afforded to the Government of Cambodia to ensure that all recommendations
which have been acted upon or considered are so reported. Urgent
recommendations concerning priority matters of human rights requiring the
attention of the Government of Cambodia are set out in annex II. An
examination of the responses since the last report will indicate, in
general terms, the responses of the Government to the recommendations
deemed by the Special Representative to have priority and urgency. The
terms of annex II speak for themselves. In the next report, the Special
Representative will include the first section of his response to the
request of the General Assembly for an evaluation of the action on the
numerous recommendations contained in his earlier substantive reports.
13. An initial assessment suggests that most of the recommendations made
in earlier reports remain to be implemented. In many cases, neither the
Special Representative nor the Centre for Human Rights is aware of the
action, if any, which the Government has taken. In other cases,
implementation of the recommendations require resources - financial,
technical and human - which are not necessarily available to the Government
(health, education, improvement of physical conditions of prisons, etc.).
A number of comments should be made in considering this apparently
disappointing picture and in securing a proper evaluation of the impact and
utility of the recommendations:
(a) Prior to the Paris Agreements, the setting-up of the United Nations
Transitional Authority in Cambodia (UNTAC) and the establishment of the
Kingdom of Cambodia, the administration of Cambodia was shattered and
substantially dislocated by more than 20 years of revolution, war,
genocide, invasion and international isolation;
(b) The Government of Cambodia faces today, as it has during the whole
period of the appointment of the Special Representative, enormous
difficulties in re-establishing civil government (a functioning competent
administration, the rule of law, good governance and an independent
judiciary and National Assembly) and rebuilding an effective public
infrastructure, responding to the continuing security difficulties and to
the needs to encourage economic expansion and regrowth;
(c) Some recommendations may be adopted or considered administratively
following discussion between the Cambodian Government and the Special
Representative, officers of the Centre, human rights NGOs and others.
Other recommendations may be included in government programmes, to be
pursued when funds permit. Recommendations, e.g., for the improvement of
the physical conditions of prisons are generally welcomed in principle by
officials who are obliged simply to await funds to achieve improvements.
Several NGOs and international donors have been encouraged by the Centre
for Human Rights to contribute funds towards the implementation of
suggestions contained in the reports;
(d) The enhanced procedures for consultation will, it is hoped,
encourage earlier and more active attention to the recommendations
contained in the reports of the Special Representative and in his human
rights recommendations addressed to the Government. The Special
Representative and the Centre for Human Rights should also continue to
contribute actively to encourage the community of donors to consider
funding assistance to help the Government to implement these
recommendations, as necessary;
(e) Notwithstanding the above considerations, the failure of the
Government of Cambodia to acknowledge and to respond to the recommendations
and the reports of the Special Representative is less than satisfactory.
14. The Special Representative considers that it is not possible, for the
time being and in the light of the above, to offer a full evaluation of the
Cambodian Government's follow-up and implementation of earlier
recommendations. He has set in preparation a more detailed analysis and
evaluation, which will be offered in later reports. The position should be
kept under review.
V. UPDATE ON SELECTED HUMAN RIGHTS ISSUES
A. Right to health
15. There have been few important developments in the achievement of the
right to health since the last report. A recent report of the United
Nations Children's Fund (UNICEF) has confirmed that the quality of health
in Cambodia has remained one of the lowest in the world. The budgetary
allocation for health also remains one of the lowest in the world and the
lowest in the region. A draft law on expired and ineffective pharmaceutical
drugs has been prepared. It was reported to the Special Representative that
new attention was being paid to programmes of birth spacing and population
control. The appearance in squatter communities, visited by the Special
Representative, of very large numbers of young children living in poverty,
receiving little or no education, suggests the need for continued national
attention to birth spacing policies. In the wake of the war and genocide,
it was understandable that such programmes were not initiated earlier.
However, they would now clearly be timely.
16. The national campaign against the spread of HIV/AIDS appears to have
been set back, at least in Phnom Penh, by the decision of the capital
Municipality to close access to the Tuol Kork dike brothel area, to harass
commercial sex workers (prostitutes) and to remove public posters promoting
the use of condoms. These issues were discussed by the Special
Representative with the Mayor of Phnom Penh and members and officers of the
City government. They were also discussed with the governors of Kampot and
Kampong Cham provinces. The difficulty and sensitivity of the issues
raised by the Special Representative are not underestimated. Strong public
protests were said by the Mayor of Phnom Penh to have been received about
the posters, originally authorized by the City government. They were
allegedly described by some citizens, particularly women, as "obscene".
Smaller posters are said to be in the process of being placed in brothels
but not on public display. The temporary closure of the Tuol Kork road
area has occasioned vehicular traffic problems and had the consequence of
the opening of brothels in other areas of Phnom Penh. The Special
Representative was informed that a draft law on kidnapping, trafficking and
exploitation of persons was nearing completion. It seems that this will
not now impose criminal sanctions on sex workers previously proposed but
will provide such sanctions for brothel owners and traffickers. The
Special Representative toured Phnom Penh at night with members, Khmer as
well as international, working with Friends, an NGO devoted to assistance
to street children. He saw and spoke to young children, some of whom had
allegedly been engaging in prostitution. Clearly, there is an urgent need
to establish and enforce laws for the protection of the young and to
provide warnings against the dangers of HIV/AIDS and information about the
means of transmission and of self-protection. The Special Representative
welcomes a decision of Cambodian journalists, reported in August 1995, to
improve and increase media reportage of the issues of HIV/AIDS.
17. One of the sites visited by the Special Representative was in Chamcar
Bei Village, in the Kep-Bokor Special District. In that area, housing is
being developed for families whose members have defected from the Khmer
Rouge under an amnesty offered by the Government. A hospital and a school
were under construction during the visit. Although the Special
Representative was told of a number of similar improvements in the health
infrastructure of Cambodia, he received many reports of substantial
monetary charges being made for health-care services by staff, even in
public hospitals. Such charges impose a special burden upon poor families
which have little or no capital or income.
B. Right to education
18. The national budget for education remains very low, only 1/12th of the
total. Once again the Special Representative noted the positive attitude
evidenced by Government officials, both in Phnom Penh and the provinces,
concerning education in human rights. At the school for police cadets at
Kep he gave a lecture on the subject to the new police recruits and
answered their questions. At a meeting with the Co-Minister of Interior
(Mr. Sar Kheng) he commended the ministry for its cooperation with efforts
at human rights education of the police, with the assistance of local human
rights NGOs.
19. At Chamcar Bei Village the Special Representative saw the school
building under construction for use by the children of defector families.
Such developments are most welcome. However, as in health care, there were
reports in other areas visited that teachers, unable to survive on the
extremely low salaries paid by the State (reportedly approximately $US 20
per month), are obliged to supplement their incomes by charging for what in
wealthier societies would be regarded as basic education. The imposition
of such charges especially disadvantages the children of poor families.
20. In squatter communities visited in Phnom Penh, NGOs have arranged some
basic education for children of the communities. However, in the case of
most children in illegal squatter communities, access to education is
extremely restricted.
21. The Special Representative is pleased to record the excellent
cooperation received by the Cambodia office of the Centre for Human Rights,
from the ministries of Defence, Interior and Justice. The Ministry of
Defence organized workshops in the provinces for the Centre's Military
Assistance Programme (see A/50/681/Add.1; para. 67). The Ministry of
Interior is working with a number of Cambodian NGOs which are conducting
police training (ibid., para. 98). The Ministry of Justice has arranged
for the Centre to conduct, in September and October 1995, human rights
training for new judges (ibid., para. 65). While in Kampong Cham, the
Special Representative presented to members of the judiciary copies,
prepared by the Centre for Human Rights, of the laws of Cambodia enacted by
the National Assembly and of the human rights covenants to which Cambodia
is a party, all of them in the Khmer language. The office has also
provided human rights training for the staff of the new Youth
Rehabilitation Centre for Juvenile Offenders. The Special Representative
welcomes the reports of the high level of cooperation received from the
Director of the Youth Rehabilitation Centre, who is the special
representative of the Co-Prime Ministers.
C. Right to work
22. The Special Representative again commends the work of NGOs,
international aid organizations and United Nations agencies in stimulating
work promotion programmes throughout Cambodia. He saw the work of the
International Labour Organization illustrated in the establishment of the
village for defector families at Chamcar Bei. He received comprehensive
reports on the provision of rice in various parts of the country by the
World Food Programme (WFP) in its Food For Work Programme. In particular,
the Special Representative wishes to commend the work of the NGO United
Cambodian Communities (UCC) in Kampot Province which has successfully
promoted numerous community-based training and income-generating projects
for especially vulnerable groups, such as women, war invalids and the
handicapped.
23. It is appropriate to record that over the period of the Special
Representative's appointment, there has been a noticeable improvement in
the economic life of Cambodia, in Phnom Penh and in some of the provincial
cities visited. In some rural areas of the country the economic
improvements, visible in the cities and towns, is not apparent. The
Special Representative considers that improved economic conditions,
especially if extended to rural districts, will reduce the risks and
dislocation of security challenges and contribute beneficially to the
growth of civil society. This can only enhance respect for basic human
rights. The Special Representative is appreciative of the need for
effective political government in Cambodia in ensuring the continuance of
the economic achievements that have been made to date. Those achievements
promise improved investment, job opportunities and work for the people.
D. Right to housing
24. The Special Representative inspected squatter communities and their
housing in Phnom Penh, both in the centre of the city and in its outer
suburbs. He received detailed briefings on the forced evictions carried
out by police and the armed forces. Because of the dislocation caused by
Cambodia's recent history - and in particular the forced clearance of
cities and towns, the death of many landholders, the demobilization of the
armed forces and the defects and uncertainties of the land law -thousands
of Cambodians have been forced to seek shelter in squatter communities.
Most of these involve housing which is primitive and makeshift, providing
no access to water and sewerage facilities, regular garbage disposal,
education and other public services. Some involve semi-permanent
structures but without assurance of continued right of occupation.
According to information received by the Special Representative, many of
the squatters have been resident in their settlements continuously for more
than five years, which entitles them to legal ownership of the land under
the State of Cambodia (SOC) land law. Others moved into already
established squatters' areas or formed new ones during the transitional
period or after the elections. Some claim to have been denied housing
because they are not associated with successful political parties or
because they were orphans, refugees or other disadvantaged people who
returned to the city or town too late, or were too powerless, to secure
access to free housing in premises abandoned by their former owners.
Several typical cases recounted to the Special Representative were:
(a) That of a soldier who stated that he had returned to his village to
find that his farm had been divided in his absence, forcing him to go back
to Phnom Penh and to live in a squatter community;
(b) That of a soldier in a former opposition army who had been
reintegrated into society but had not been provided with adequate land or
housing;
(c) That of a head of family who had left his village in 1979 and could
not make a living upon his return, as all of his relatives had been killed
in the previous two decades.
25. The information received by the Special Representative from members of
the squatter communities included:
(a) Absence of an overall governmental policy to deal with the problems
of housing for displaced squatters;
(b) Lack of court authorization and supervision of forcible evictions
from land, often performed with little advanced legal notice by the
authorities;
(c) Threat and use of violence and loss of personal property in the
course of forced evictions;
(d) Absence of compensation and failure to provide suitable alternative
land for squatters displaced by evictions;
(e) Lack of water, sewerage and other public facilities to squatter
communities;
(f) Lack of support by the NGO community for squatters. The Urban
Sector Group (USG) is one of the few NGOs paying specific attention to the
needs of the squatters.
26. Many squatters and squatter representatives whom the Special
Representative met during his mission acknowledged the inevitability of the
removal of squatter communities from places close to business or tourist
centres. However, their complaints concerned the lack of recognition of
their rights, including those to advanced notice and compensation, and the
manner in which current eviction policies were being effected.
27. The Special Representative brought the concerns of the squatters to
the notice of representatives of the Government. In particular, he had a
very constructive meeting with the Mayor of Phnom Penh (Mr. Chhim Siek
Leng) and the Deputy Mayor of the City (Mr. He Kann). They stated that
many squatters had other places to stay and that they should be returned to
the provinces to assist in the harvesting of rice on their farms. Some
funding to return those removed from squatter settlements was provided.
However, it was acknowledged that many of those forcibly sent to the
provinces quickly found their way back to the capital city.
28. The Special Representative also examined the special problems of
street people and street children. A national policy to clear such persons
on a voluntary basis from the streets, parks and other public places
through an Inter-Ministerial Commission appears to have been supplemented
by a so-called "immediate plan" aimed at a more rapid expulsion of such
people from Phnom Penh by the capital's administration. The given reasons
for this "plan", which has been effectively implemented, were the needs to:
(a) Reduce petty crime and disorder associated with such persons;
(b) Remove the affront to the "honour" and to the improving appearance
of the City as a business and tourist attraction;
(c) Act during the rainy season when street people have little or no
shelter against heavy rain and become prone to illness.
The Special Representative received vivid descriptions of the round-up of
street people. In his own observation, there were many fewer such people
visible in Phnom Penh, including fewer street children, in August 1995 than
during previous missions.
29. The Special Representative acknowledges the acute difficulties faced
by the Mayor and officers of the Municipality of Phnom Penh in dealing with
squatters and street people. It is important, however, to keep in mind the
requirements of article 11, paragraph 1, of the International Covenant on
Economic, Social and Cultural Rights, to which Cambodia has acceded;
article 25, paragraph 1, of the Universal Declaration of Human Rights; and
resolution 1993/77 of the Commission on Human Rights, on "forced
evictions", which have been brought to the notice of the Mayor of Phnom
Penh by the Centre for Human Rights in the past. Furthermore, in respect
of the rights of children in vulnerable groups, article 27 of the
Convention on the Rights of the Child, to which Cambodia has acceded, is
relevant, as is article 44 of the Cambodian Constitution. The latter
protects private property. It requires fair and just compensation in
advance of any confiscation. Article 74 of the Land Law of the former
State of Cambodia, not repealed or amended, grants legal ownership to land
to persons who have temporarily and peacefully possessed the land for five
consecutive years or more. Many squatters seen by the Special
Representative appear to fall within the terms of this law but have not
been given its protection.
E. Right to a healthy environment and to sustainable development
30. The Special Representative continues to receive reports of the large-
scale export of timber from Cambodia despite the prohibition on unlicensed
logging imposed by the Government of Cambodia as from 1 January 1995. A
substantial export trade reportedly continues, including from areas still
controlled by the Khmer Rouge in western Cambodia. This trade undermines
the Government's commitment to control logging and to confine it to cases
of responsible reforestation. It helps fund the continued armed anti-
Government activities of the Khmer Rouge. It also has serious effects on
the environment, with grave consequences for the rice harvest, soil
erosion, survival of fauna and flora and the economic life of most of the
population in Cambodia.
31. The foregoing concerns have attracted the attention of international
observers, such as the Chairman of the United States Senate Subcommittee on
East Asian and Pacific Affairs (Sen. C. Thomas) (United States Senate, 21
July 1995) and NGOs, such as Global Witness (see "Thai-Khmer Rouge links
and the illegal trade in Cambodia's timber", July 1995). In a statement on
3 August 1995, the First Prime Minister of Cambodia (H.R.H. Prince Norodom
Ranariddh) expressed the Government's concern about the state of the
environment and deforestation in Cambodia. He stated that firm policies
had been adopted to deal with illegal felling of trees, their export and
sale. He stated that a logging contract, awarded to the Samling
Corporation, would provide 40,000 jobs and provide timber only for use
within Cambodia in strict compliance with reforestation and protection of
the environment. This issue will continue to receive the close attention
of the Special Representative. Some of its implications, which are
relevant to the mandate of the Special Representative, have been raised
with a neighbouring country for comment.
F. New laws and practices
32. The Special Representative notes that an Immigration Law (but not a
law on nationality or refugees) has been enacted. Defects in the
Immigration Law, noted in earlier reports, remain. The current
implementation practices also give rise to concern. The Special
Representative also notes that the Press Law has been enacted. Some of the
defects, noted in earlier reports, remain. Anticipated subordinate
legislation, to define terms in that law, has not yet been enacted (see
sect. G below). One law, the Law Regulating the Civil Servants, passed in
October 1994, contains an article 51 that provides a measure of immunity
from prosecution to all civil servants in certain cases. The law needs to
be revised (see chaps. V and VI below).
33. Another important law enacted by the National Assembly since the last
report is the Law on the Bar Association. As originally proposed, the law
would have inhibited or curtailed the work of the human rights Defenders
who have been trained to represent accused persons in Cambodian courts.
Such Defenders frequently appear in cases involving human rights concerns
and usually without fee. Such Defenders have performed very important
work. The proposal to withdraw their rights of audience in criminal
proceedings in Cambodian courts was opposed by many persons and bodies. It
was the subject of a human rights recommendation by the Special
Representative to the Government (see annex II, HR REC 5/95). Eventually,
as a result of amendments adopted by the National Assembly, the law
permitted Defenders to continue to practise in such cases until the end of
1997. It is expected that by that time the first law graduates will be
ready for practice. The need for more public Defenders is unlikely to
abate. The law will need to be reconsidered as the current extended
deadline approaches. It is the view of the Special Representative, and of
the Cambodian judges with whom he discussed the work of defenders during
his sixth mission, that the assistance of an experienced defender is often
essential for the proper performance of the judicial function in serious
criminal trials.
34. Pending draft laws of relevance to human rights include those on anti-
corruption, labour, kidnapping, trafficking and exploitation of persons,
associations, control of pharmacies, anti-personnel land-mines and
nationality.
G. Independence of the judiciary and the rule of law
35. Most of those problems relevant to the independence of the Judiciary
which were recorded in earlier reports of the Special Representative,
remain to be resolved. A fundamental problem is the provision of a
judicial salary of 50,000 riels per month (about US$ 20). As previously
reported, this is totally inadequate to secure both the reality and the
appearance of the independence of the judiciary in Cambodia. It is clear
that judges' legal skills have greatly improved in the past two years.
However, the opportunities available to medical practitioners and teachers
to supplement their income by fees or other means should not be available
to judges. Cambodia's judges sometimes deal with cases involving extremely
valuable property. Thus, in a case before the Cambodian courts when the
Special Representative was in Cambodia, accused were brought before the
Court charged with importing heroin alleged to be worth millions of dollars
in street value. The reality and appearance of independence and integrity
require that judges be put beyond the temptations of corruption. This is
next to impossible if they are in any way dependent for their income upon
those who are brought before them.
36. The Special Representative discussed the foregoing problem very
candidly with judges. They pointed to the monthly salary voted by members
of the National Assembly to MPs amounting to the equivalent of about US$
1,800 per month. The judges suggested that a monthly salary of an amount
equal to about $400 per month would be appropriate for judges and
prosecutors. According to the Ministry of Justice there are currently 135
magistrates in Cambodia. Another 42 judges are undergoing training. Under
the Constitution and law of Cambodia, judges are not civil servants.
However, many complaints and suggestions critical of alleged judicial
partiality, and even corruption, have been received by the Special
Representative. While many of them are doubtless baseless, until the
levels of the salaries of judges are significantly increased, the
allegations will continue to be made and accepted by the public. It is
essential to an independent judiciary that it be manifestly beyond the
actuality or appearance of temptation to corruption. Judicial corruption
strikes at the foundation of the rule of law.
37. One matter pertinent to the observance of the rule of law which was
the subject of representations by and to the Special Representative during
his sixth mission concerned the expulsion of a member of the National
Assembly. When the member proceeded to the Municipal Court to challenge
his removal from his party, prior to his expulsion from the Assembly, it
ruled that it did not have the jurisdiction to entertain the challenge (see
also para. 49 (a) below). Because the Constitutional Council envisaged by
the Constitution of Cambodia has yet to be established, there was no
judicial body in Cambodia with the jurisdiction to rule authoritatively
upon the constitutionality of the expulsion.
38. The difficulties of rendering powerful persons answerable to the rule
of law continues in the ways mentioned in previous reports. However, there
are new cases and problems. These include the following:
(a) Very frequent reluctance by the police to arrest, and by the courts
to charge, persons holding military office even for serious and obvious
criminal offences and even when caught in the commission of the act. A
notorious case of this kind was that involving Lt. Col. Sath Soeun. In May
1995, he was acquitted by the Kampong Cham Court of a charge of murdering a
journalist in respect of which there was strong circumstantial, but no
direct, evidence. On 25 July 1995, in the presence of several police and
Gendarmerie officers, he allegedly outrightly killed a 16-year-old youth
named Pao, who was suspected of burglary in a house in Kampong Cham.
Having allegedly cornered the youth in the house, it is claimed that Lt.
Col. Sath Soeun deliberately opened fire at very close range on the youth
with the intention of killing him. As the youth was still alive, Lt. Col.
Sath Soeun is said to have returned to the boy and finished him off with
three more bullets, two of which hit him in the back of the neck. Instead
of arresting Lt. Col. Sath Soeun for this obvious homicide, the police
allowed him to depart. When an arrest warrant was issued by the Kampong
Cham Court, the accused decamped. He was reported to have fled to another
province. He was still at large when the Special Representative discussed
the case with officials in Kampong Cham and with the Co-Minister of
Interior;
(b) The difficulty of securing the extradition or return of accused
persons from other provinces to the province of the court of trial has been
reported to the Special Representative by many judges and prosecutors. In
default of proper budgetary provisions to secure the execution of a warrant
of arrest in another province, the court or prosecutor is often obliged to
rely on the provision of funds by the family of the victim or complainant;
(c) There appears to be no effective remedy to oblige a person to give
evidence as witness before the court and, under penalty of default, to
return to the court of trial to give evidence in a trial;
(d) In October 1994, the National Assembly enacted the Law Regulating
Civil Servants. Article 51 of that Law provides a wide measure of
effective immunity to all civil servants. In the cases specified, unless
the Council of Ministers or the ministers consent, a civil servant may not
be proceeded against except in case of an offence where he or she has been
apprehended in the course of committing the offence or immediately
thereafter. This law, which may have been designed to reduce inconvenience
imposed on the hard-pressed Cambodian administration, or to prevent the
abuse of process against high officials, has, as the Special Representative
was informed in many instances, led to an effective immunity from
prosecution of persons whose designated superior fails or refuses to
respond to the relevant court's request for the issuance and execution of a
warrant. There is also uncertainty as to whether the definition of "civil
servant" in the law includes military officers. However, the Special
Representative was informed that in some Cambodian courts accused military
were taken as being within the requirement of the law. Interpretation of
this law varies considerably. The Ministry of Justice has attempted to
alleviate the problem by enacting subordinate legislation. However, the
Special Representative was informed, in at least one court, that the judges
(properly in his view) did not consider that the Minister's instruction
could lawfully override the law made by the National Assembly and expressed
in apparently clear terms. It is unfortunate that those terms are so
discriminatory. They have the effect of relieving persons in authority of
the operation of equality before the law. This problem was drawn to the
attention of the Minister of Interior and the Minister of Justice.
H. Prisons and other custodial institutions
39. During his sixth mission the Special Representative visited prisons in
Kampot and in Kampong Cham. Each was in a very poor state of repair. Each
requires the investment of considerable funds to improve the basic
buildings and facilities for prisoners and officials alike.
40. The prison of Kampot comprises a number of dilapidated buildings in a
poor state of repair. Some cells were disused because of leaking roofs and
collapse of concrete benches. In a break-out in May 1994, two prisoners
were killed by a prison guard. Allegedly the two, who had raised their
hands in surrender, were shot at very close range and killed by the guard,
who was under no threat. No sanction, administrative or judicial, was
taken against the guard, who is still in service in the prison. The case
was brought before the court, which ruled that there was not enough
evidence to prosecute the guard. The discipline of the prison became
extremely strict following another prison break-out, in June 1995, of 13
prisoners, only 2 of whom had been recaptured. Prisoners in Kampot, to
whom the Special Representative was afforded private access upon an
undertaking of non-retaliation, complained about collective discipline
which, they said, had been instituted since the dismissal of the prison
commander after the escapes. Matters brought to the particular attention
of the Special Representative included:
(a) The use of one dark cell (and the existence of several others) with
only a small shaft of light, for specific discipline and, allegedly, on
first arrival in the prison as a warning and inducement to good discipline;
(b) The use of iron leg shackles, which were seen in the dark cell in
use and are apparently in regular use;
(c) The shortage of time allowed to prisoners to be outside their cells;
(d) The lack of educational facilities, newspapers and other reading
matter and sporting facilities;
(e) The difficulties in securing contact with human rights NGOs and
defenders unless initiatives are taken by relatives or friends outside the
prison;
(f) Uncertainty about the date of trial.
After discussion with the Special Representative, the prison commander
undertook to endeavour to ameliorate the above strict regime.
41. The prison at Kampong Cham was even more unsatisfactory. It was
formerly a school building and its security arrangements and facilities are
also completely unsatisfactory. Fear of the escape of prisoners had caused
the Prison Commander to require that the prisoners be locked in their cells
for extended periods of time (allegedly 23 hours a day). Although the
cells are large and the conditions not as cramped as at Kampot, the dark,
damp conditions observed by the Special Representative were extremely
unhealthy. Toilet facilities were primitive. Prisoners, whom the Special
Representative was permitted to interview in private, complained of the
length of their confinement to cells, the lack of time for sport and
exercise, the lack of facilities for medical treatment (two young prisoners
complained of untreated syphilis) and virtually complete lack of diversion.
As a result of the intervention of the provincial office of the Centre for
Human Rights, arrangements had been made with WFP for a supplement of good-
quality rice. However, this temporary facility will shortly expire. The
earlier dietary provision was reported to be unsatisfactory. The condition
of the female prisoners was marginally better. As a result of the
intervention of the Centre's provincial office, the female prisoners had
been trained in machine sewing. They showed the Special Representative
samples of clothing they had made. The condition of facilities for the
guards was also poor. The District Police Commander and the Prison
Commander appealed for a supply of medicines for use by the prison nurse
and for help in the provision of a generator for electricity for the prison
and well digging equipment for access to water which, in the dry season,
must often be purchased from water vendors.
42. The Special Representative takes note of the ongoing preparation of
prison regulations by the Ministry of Interior and the assistance provided
by the Centre for Human Rights. An Australian Aid Agency (AUSAID) mission
has also visited Cambodia to assess the needs in the area of prison reform,
among others. This is particularly important owing to the rapid rise in the
number of inmates in Cambodian prisons, particularly since the beginning of
1995. According to the Prisons Department, the total number of inmates at
the time of the visit was around 2,500. A number of prisons, including
Prey Sar in Phnom Penh, Kampong Speu and Kampong Chhnang, suffered severe
water shortage during the dry season.
43. A major prison escape occurred in Siem Reap in May 1995.
Approximately 51 prisoners escaped, 28 were recaptured and 2 died as a
result of bullet injuries during apprehension. A number of recaptured
inmates were allegedly tortured after recapture. An internal investigation
conducted by the Ministry of Interior reportedly concluded that the escape
was made possible through negligence on the part of the prison officers.
No conclusion however was reportedly reached on the allegations of torture
which were brought to the attention of the investigation team. The results
of the investigation have not been made public.
I. Freedom of expression and the Press Law
44. The Special Representative welcomes the continued activity of many
media outlets in Cambodia. There are over 50 electronic and print media
outlets in regular operation. He also welcomes the continued good work of
the Cambodia Communication Institute, a project of the United Nations
Educational, Scientific and Cultural Organization (UNESCO) funded through
the International Programme for the Development of Communication. It has
organized conferences and seminars and published important documents in the
Khmer language for use by and in the press, including a copy of the Alma
Ata Declaration on Promoting an Independent and Pluralistic Asian Media.
An Asia-Pacific Regional Conference organized under the auspices of the
International Federation of Journalists and hosted by the Khmer
Journalists' Association, was held at Phnom Penh from 24 to 28 July 1995.
It was addressed by several Cambodian leaders and attended by many
journalists. Its closing consensus statement emphasized that media
scrutiny of the exercise of political power was essential in a democratic
society; that all media laws should conform to international and
constitutional standards; and that journalists themselves have a duty to
work to the highest professional standards. The latter was a point made
earlier by the Special Representative at a joint UNESCO-Centre for Human
Rights Round Table on Journalistic Ethics and Defamation, held at Phnom
Penh on 27 January 1995.
45. The Press Law, which has been the subject of several written
representations and recommendations to the Government as well as previous
reports by the Special Representative, was adopted by the National Assembly
on 18 July 1995. The final text of the Law contained a number of
improvements upon earlier drafts, which are welcomed by the Special
Representative (see also A/50/69/Add.1, paras. 33-35). However, there
remain provisions in the law which give rise to serious concern. These
have been shared in writing and orally with the Government of Cambodia by
the Special Representative (ibid., para. 34) (see also sect. VI, H below
and annex II, HR REC 24/94 and 7/95):
(a) It is still unclear whether the law, which contains a provision
purporting to repeal earlier laws relating to the press, excludes the
operation of the provisions of the Penal Law which allow for imprisonment
of journalists, among others, for defamation, disinformation and
incitement;
(b) The definition of "national security" was removed, leaving offences
by the media in this regard undefined and potentially unclear;
(c) Similarly, the provision for offences in relation to "political
stability" was undefined, the phrase not being a legal term;
(d) The power given to the Ministries of Information and Interior to
confiscate newspapers and for the Ministry of Information to suspend press
organs without authority of a court order is clearly undesirable;
(e) The provision for prohibiting "humiliation of national institutions"
is contrary to the Constitution and established international human rights
norms, which protect individuals and people and not institutions.
46. During 1995, as at the time of writing, no journalist has been
imprisoned or killed in Cambodia for reasons related to the exercise of
freedom of expression. However, no one has been punished for the murder of
two journalists in September and December 1994. In the case of the murder
of Noun Chan, editor of the newspaper Samleng Youvechun Khmer (Voice of the
Khmer Youth), two suspects were arrested by the Phnom Penh Judiciary
Police. However, contrary to law, they were detained incommunicado for
over 40 days, thereby exceeding the legal delay of 48 hours, without being
brought before a judge, and while under such detention they were allegedly
forced to confess their guilt. They were eventually brought to the
Prosecutor's office. The Court ordered their release as it could find no
evidence against them. No action, administrative or judicial, was taken
against the police officers responsible for their illegal detention, ill-
treatment and forced confessions. No one else has to date been brought to
justice for the murder of Noun Chan. In the case of the murder of Koh
Sontapheap (Island of Peace) newspaper journalist Sao Chan Dara, a suspect,
army Lt. Col. Sath Soeun, was tried and found innocent by the Kampong Cham
court.
47. Cases of restrictions of freedom of expression continue to come to
the attention of the Special Representative and appear to involve
departures from the norms contained in the provision of the Constitution of
Cambodia and in article 19 of the International Covenant on Civil and
Political Rights, which Cambodia has ratified. These include the
following:
(a) The suspension of publication by administrative order, on 15
February 1995, without court order, of the newspaper Odom Kete Khmer (Khmer
Ideal) "until the new Press Law is adopted". This purported order appears
to have violated the then existing law limiting any such suspensions to a
period of 30 days. It was the subject of a representation to the
Government by the Special Representative;
(b) The conviction and the sentence to a large fine of the editor of the
newspaper Samrek Reask Khmer (Cry of Khmer People) on 21 February 1995, for
publishing two articles expressing strong political opinions, although with
the use of insulting words;
(c) The conviction and sentence to one year's imprisonment and a large
fine on 27 February 1995 of Mr. Chan Rattana, the editor of Voice of Khmer
Youth, for the expression of opinion, although with the use of insulting
words. The journalist has appealed against his sentence, which has been
suspended pending the determination of an appeal;
(d) The conviction and sentence to a large fine of the editor of the
newspaper Khmer Ideal on 19 May 1995, for publishing an article expressing
political opinions. Non-payment of the fine would result in a two-year
sentence. The newspaper was also shut down. The sentence has been
suspended pending appeal;
(e) The conviction and sentence to one year's imprisonment and a large
fine of the editor of the newspaper Sereipheap Thmei (New Liberty News) on
20 May 1995, for publishing an article expressing strong political
opinions. Non-payment of the fine would add another year to the sentence.
The newspaper was also shut down. The sentence has been suspended pending
appeal;
(f) On 22 June 1995, a member of the National Assembly of Cambodia and
former Minister, Mr. Sam Rainsy, having been expelled by the political
party in whose interest he had been elected to the National Assembly, was
removed from the Assembly. He claimed that the expulsion had arisen out of
his expression of opinion both within and outside the National Assembly.
This case is dealt with below (see para. 49 (a)). In his statement on 3
August 1995, the First Prime Minister explained the expulsion as being the
result of the member's failure to "toe the ... Party line" and to resolve
any issues within the party apparatus and not to fight it in public, giving
unwarranted advantages to undesirable elements. It is not unusual in
democracies for members of political parties to sacrifice certain rights to
uninhibited expression for the sake of party unity. This can be inferred
from party membership. What was unusual in this case was the expulsion of
the member from the National Assembly and the failure of the Assembly to
afford the member the right to be heard in his own defence before this
serious step was taken;
(g) The arrest on 5 August 1995 in Phnom Penh of six men for flying
balloons and distributing pamphlets in a public place concerning political
affairs. The men were detained without charges at the Municipality Police
Commissariat until 11 August 1995, when they were transferred to prison.
They were not brought before a judge until 16 August 1995. The pamphlets
concerned were read, in English-language translation, by the Special
Representative. They contain no apparently inflammatory language nor were
they an apparent incitement to unrest. In the opinion of the Special
Representative, they are merely the peaceful expression of political
opinions. In addition, the failure to bring the accused within 48 hours
before a judge upon charges filed by a prosecutor appears to have been in
breach of Cambodian law, as well as of article 9 of the International
Covenant on Civil and Political Rights. 4/ On 16 August, the six were
detained by a judicial order for four months under article 60 of the UNTAC
provisions relating to the Judiciary and Criminal Law and Procedures
applicable in Cambodia for incitement. The Special Representative, while
on his sixth mission, made representations both orally and in writing
regarding the rights of the accused (see annex II, HR REC 9/95).
J. Right to be elected and to take part in Government
48. In his last report (A/49/635), the Special Representative expressed
concern at the widely reported threats to members of the National Assembly
who had expressed, both within and outside the Assembly, opinions differing
from those of the Government. The existence of such threats was disputed
by the Government of Cambodia. The Special Representative must now report
on further developments relevant to the right to be elected and to take
part in government.
49. The Special Representative wishes to stress, as he did at all official
meetings at which this issue was discussed, that it is neither his
intention nor his responsibility to become involved in Cambodian political
affairs. In accordance with his mandate, the Special Representative is
concerned with this matter only in so far as it may imply deviations from
internationally recognized human rights norms. The new developments are as
follows:
(a) On 22 June 1995, the National Assembly, without permitting debate,
expelled a member originally elected as a member of the Constituent
Assembly from Siem Reap. The member, Mr. Sam Rainsy, had earlier been
expelled from the United National Front for an Independent, Neutral,
Peaceful and Cooperative Cambodia (FUNCINPEC) party, the largest political
party represented in the National Assembly and the party of the First Prime
Minister. The right of a political party to expel a member from it is not
doubted. The issue presented by the case is the legality of the action
taken by the National Assembly and its implications for the protection of
human rights in Cambodia. The existence of a strong, independent and
National Assembly which respects the law is selfevidently essential to the
effective protection of human rights in Cambodia. The Constitution of
Cambodia, in its article 95 provides for only three cases of removal of an
elected member, viz., death, resignation and departure (i.e., from the
National Assembly). There is no fourth case, i.e., of loss of party
membership. This constitutional scheme has been confirmed and repeated by
the use of similar language in the UNTAC Electoral Law, article 78 (2), and
the internal rules of the National Assembly itself, principle 83. For such
a serious step as expulsion of a member, in such circumstances, it would
have been expected that an express ground would have been provided, if such
had been intended. The Special Representative drew this advice to the
attention of the Government and the National Assembly in May 1995. He
repeated it in oral explanations at a lengthy session at the National
Assembly on 11 August 1995 at which he was privileged to meet the First
Vice-Chairman of the National Assembly, Mr. Loy Sim Chheang, and the
chairmen and other members of the Commissions of the National Assembly. On
26 July 1995, the Special Representative was also obliged to bring to the
notice of the Government of Cambodia allegations of unlawful arrest,
detention and ill-treatment performed by persons, apparently in military
uniform, on the house guards of the expelled member, which took place in
Phnom Penh on 13 July 1995. So far, no redress has been provided for these
complaints of assaults and arrests;
(b) Following the above expulsion, a factional dispute broke out in the
Buddhist Liberal Democratic Party (BLDP), the smallest of the three parties
in the coalition Government. After a threat to expel a member of one
faction from the party (with the danger, upon the above precedent, of loss
of his seat in the Assembly), moves were taken to expel from BLDP six
members of another faction who are members of the National Assembly.
Concern about this possibility and its implications for the continued
effectiveness of the National Assembly were expressed by the Special
Representative to members of both factions of BLDP and to the National
Assembly members present at the meeting on 11 August 1995, as described
above. This concern was further expressed to His Majesty King Sihanouk and
to the Chairman of the National Assembly, Mr. Chea Sim, on 16 August 1995.
During the Special Representative's sixth mission to Cambodia, and while
these developments were occurring, one member of BLDP died in the National
Assembly building, reportedly by suicide. One of the notes allegedly left
by him referred to his distress about party disunity. It also referred to
the Special Representative's publicly revealed concerns, i.e., about the
expulsion of members from the National Assembly.
50. There was an earlier case involving an elected member of the National
Assembly, but he never took office or was sworn in as a member, so that
case was not a true case of expulsion of a sitting member. Although it is
also true, as claimed, that the issue is one of internal politics of
Cambodia, it is also one raising the fidelity of Cambodia to its own
Constitution and laws protective of human rights and to the international
human rights treaties which Cambodia has subscribed, as well as to the
Paris Agreements. 5/
51. Annex 5 of the Paris Agreements includes a commitment of Cambodia "to
follow a system of liberal democracy on the basis of pluralism". This is
enshrined in the Constitution of Cambodia, article 50. Such a commitment
was repeated in June 1995, before the vote to exclude Mr. Sam Rainsy, by
the President of the National Assembly, Mr. Chea Sim. Other societies have
successfully organized their political life on different bases. However,
the Constitution and laws of Cambodia reflect faithfully the above
commitment contained in the Paris Agreements. Because the Constitutional
Council has not been established, any member purportedly expelled from the
National Assembly upon loss of party membership, could not seek an
authoritative ruling on the constitutionality of such a move. The Phnom
Penh Municipal Court dismissed as beyond its jurisdiction the legal
challenge to the expulsion from the party by the expelled member. During
his mission to Cambodia the Special Representative continued to press, as
he has in the past, for the earliest possible establishment of the
Constitutional Council.
52. The Special Representative's concerns about the expulsion and
threatened expulsions of members of the National Assembly of Cambodia are
entirely unconnected with the personalities of the particular members of
the National Assembly involved or their respective political policies. The
concerns of the Special Representative relate to the precedent which has
been set; the fear that it will effectively transfer political power from
the people at public elections to private meetings of political parties;
the danger that fear of expulsion by the party will discourage dissent or
serious debate on important issues in the Assembly (including those
relating to human rights); and the condonation by the legislature of
Cambodia of an apparently serious departure from constitutional legality,
essential to the rule of law.
K. Vulnerable groups, including women, children and minorities
53. The Special Representative welcomes the continued discussion between
the Governments of Cambodia and Viet Nam of the bilateral issues affecting
both countries, including the issue of the rights of the minority ethnic
Vietnamese population in Cambodia. He is still awaiting the enactment of a
nationality law and subordinate legislation for refugees, which would be in
conformity with the Constitution and relevant United Nations conventions to
which Cambodia is a party. Shortly before the arrival of the Special
Representative in Cambodia for his sixth mission, it was announced that 13
families of the approximately 90 ethnic Vietnamese boat people at Chrey
Thom had been allowed to return to their homes in Cambodia upon
establishing, through their family papers, a substantial period of
residence in Cambodia. The Special Representative, who has made several
representations about the issue and visited the floating encampment of
Chrey Thom twice during earlier visits, welcomes this development. The
majority of the people at Chrey Thom, estimated at 2,500, still await
relief from their predicament. The Special Representative continues to
monitor developments closely in this sensitive area.
54. In his meeting with the Co-Minister of Interior, Mr. Sar Kheng, the
Special Representative raised concerns about certain directives which have
delegated power to provincial and municipal authorities to register, detain
and expel "illegal aliens" without taking into account procedures and
safeguards as stipulated in the Immigration Law. The lack of a nationality
law renders it impossible to determine legally who is an illegal alien.
The Special Representative has been promised by Mr. Sar Kheng that these
directives would not be implemented, which would result in the mass
detention and collective expulsion of "illegal aliens", which, in turn,
would be contrary to the International Covenant on Civil and Political
Rights.
55. During the sixth mission, the Special Representative concentrated his
attention upon the rights and needs of children. According to UNICEF, of
the Cambodian population of approximately 9.7 million, 4.5 million are
under 16 years of age. Approximately 1.5 million are under the age of 5.
The Special Representative pays tribute to the Ministry of Social Affairs,
Labour and Veterans Affairs, Cambodian NGOs, UNICEF and other international
and local agencies and NGOs for their work for the improvement and defence
of the rights of Cambodia's children. According to UNICEF figures,
Cambodia's infant mortality rate is the highest in South-east Asia.
Article 48 of the Constitution provides that the State shall protect the
rights of children as stipulated in the Convention on the Rights of the
Child. Cambodia ratified that Convention on 15 October 1992. Translating
these aspirations into practice is the challenge before Cambodia.
56. The Special Representative visited orphanages in Kampot and Phnom
Penh. He met Government ministers and officials, representatives of NGOs
and others concerned in children's projects. He met street children and
had many opportunities to speak to Cambodian children as well as those
concerned about their welfare.
57. The chief concerns which engaged the attention of the Special
Representative with regard to vulnerable groups during the sixth mission
were:
(a) Orphans. There are 29 Government orphanages in Cambodia and
numerous private institutions operating under Government supervision.
Problems arise when occupants in the orphanages reach 18 years of age.
Funds are not available for the separate care of adults. The Ministry of
Social Affairs, Labour and Veterans Affairs is currently planning to draft
an adoption law in consultation with the Centre for Human Rights. At
present, adoption, including adoption by foreigners, is arranged
administratively, without the detailed requirements which typify the
procedure in other countries;
(b) Education. Although the Constitution in its article 68 commits
Cambodia to free primary and secondary education for all children, the
education budget is low (see para. 18 above). Educational attendance in
provincial districts is much lower than in urban areas. There continue to
be high drop-out rates. There is a clear need for attention to the special
education needs of females, handicapped children and children from minority
ethnic communities. Many commentators stressed the need to improve the
salaries of teachers;
(c) Sexual exploitation and trafficking. This topic has been referred
to in earlier reports of the Special Representative. Although in 1990 the
number of commercial sex workers in Phnom Penh was estimated at 1,500, the
number increased rapidly during the UNTAC-supervised transitional period,
which allowed an opening of the country after almost a decade and a half of
international isolation. The Cambodian Women's Development Association now
estimates that that number has increased to 17,000, of whom about 35 per
cent are girls aged between 12 and 17. There is no legally specified age
of consent for sexual intercourse provided by criminal law; however, it is
generally taken to be 18 years. The Special Representative received
reports of kidnapping and trafficking in virgin children and of girls of 12
years and younger being sold into prostitution by poor families in
provincial districts. The spread of HIV/AIDS renders these developments
especially worrying;
(d) Juvenile justice. The Special Representative welcomes the
Government's acknowledgement of the need for a special policy on juvenile
justice and the establishment of a Youth Rehabilitation Centre to avoid the
commitment of young offenders to Cambodia's unsatisfactory prisons. In
Kampong Cham prison the Special Representative spoke to a prisoner who gave
his age as 15 but who prison officers said was 17 years old and who
complained of untreated syphilis. The Youth Rehabilitation Centre requires
the development of guidelines for its operation to be worked out in
consultation with the Centre for Human Rights and relevant NGOs.
Complaints were received by the Special Representative about the lack of
specialized juvenile judges, the frequent lack of legal representation for
juveniles and the need for research on the causes of juvenile crime and the
best ways of addressing those causes in the light of experience,
particularly in the operation of the Youth Rehabilitation Centre.
L. Reporting obligations under international covenants
58. The Special Representative welcomes the cooperation of the Government
with the relevant NGO communities in the drafting of Cambodia's report on
the Convention of the Rights of the Child. The same cooperation is
encouraged in the case of the proposed reports on the International
Covenant on Civil and Political Rights and the International Convention on
the Elimination of All Forms of Racial Discrimination. However, these
reports are all overdue (see A/50/681/Add.1, paras. 81-85 and annex III,
A). During his sixth mission the Special Representative conveyed to the
Minister of Justice, as Chairman of the Inter-Ministerial Committee, the
importance which he attached to the early submission of Cambodia's reports
and to continued close consultation with interested bodies in their
finalization. He extended his offer of technical assistance by the
Cambodian office to the Council of Ministers in the finalization of these
reports.
M. Security issues
59. During his visit, the Special Representative received information
concerning the continuing laying of fresh anti-personnel land-mines by the
Khmer Rouge in Siem Reap Province. Mines are used as a tactic to disrupt
communication lines and to deny ground to government forces. They are not
laid in fields or in any pattern which make them extremely difficult to
clear, and they target civilians as well as the military. The Special
Representative welcomes reports that in Siem Reap government forces appear
to be adhering to the official policy of not laying new mines, even to
protect positions at night.
60. The Special Representative welcomes the continued attention to the
problem of land mines in Cambodia. The Minister of Information, Mr. Ieng
Mouly, who is also the Chairman of the Cambodia Mine Action Centre,
informed the Special Representative about proposed initiatives to increase
the Government's response to the land-mine problem. The United Nations
Development Programme (UNDP) has offered increased assistance to the
Government beginning in 1996. Discussion is progressing within the
Government concerning the development of a law on landmines that will ban
their import, use, production and stockpiling in Cambodia (see
A/50/681/Add.1, para. 52). The Minister promised to consider, within
available funds, measures for the compensation of victims. At the
International Conference to Ban Land-mines held at Phnom Penh from 2 to 4
June 1995, the Secretary-General's representative in Cambodia, Mr. Benny
Widyono, read the Secretary-General's speech, entitled "The socio-economic
impact of land-mines: towards an international ban". The Special
Representative profoundly hopes that the Review Conference of the
Convention on Prohibitions or Restrictions on the Use of Certain
Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to
Have Indiscriminate Effects of 1990 (Protocol II of which deals with land-
mines) will achieve real progress towards the goal advocated by the
Secretary-General.
61. The Special Representative notes with concern a death threat received
by the representative of the Secretary-General in Cambodia on 2 June 1995.
The threat was delivered orally and in writing to the staff in the office
of the representative in his absence. The description of the person
involved was conveyed to the Government of Cambodia, which responded
quickly and appropriately. A suspect was arrested on 26 June 1995. It
would be intolerable if the representative could not perform his duties
without threat or intimidation. The Special Representative expresses his
satisfaction and thanks for the prompt reaction of the Government of
Cambodia and the relevant United Nations agencies.
62. The above threat to the Secretary-General's representative must be
seen in the context of other recent, and so far unresolved, attacks on
United Nations personnel in Cambodia. These have included:
(a) The armed abduction and apparently deliberate shooting in the thigh
on 8 September 1994 of Monica Oliveros, the 5-year-old daughter of Mr. Luis
Oliveros, an officer of the Centre for Human Rights. This occasioned the
emergency evacuation of that officer and his family from Cambodia. Despite
some leads to identify the culprits, no one has yet been brought to justice
as a result of this attack;
(b) The murder on 29 June 1995 of Ms. Mouninith Goossens, the spouse of
a WFP staff member in Siem Reap. Although two suspects were arrested, they
implicated a third person, who has not been apprehended as of this writing.
Representations by United Nations officers, including the representative of
the Secretary-General in Cambodia, were made to the Government;
(c) On 7 July 1995, in Kampong Thom, in a matter having to do with rice
distribution, an officer of WFP was also threatened with murder by an
officer of the Provincial Red Cross (PRC). The PRC officer was ordered
transferred to another town by PRC. Subsequently the premises WFP and PRC
shared in common were sprayed with bullets. Although nobody was physically
injured, no one has yet been charged as a result of this action, which was
plainly intended to intimidate those concerned.
63. The Special Representative brought his concerns about the threats to
United Nations personnel, including all of the above, to the notice of the
Minister of Interior, Mr. Sar Keng, when he met with the Minister during
the sixth mission. A clear government response to, and action upon, these
complaints will allow United Nations officers and their families to feel
safe and to perform their duties in Cambodia in a normal manner.
64. A derivative problem, called to the attention of the Special
Representative in every part of Cambodia which he has visited, is the
extent to which firearms are readily available to the population. In part,
this is the consequence of decades of war and revolution. It persists,
partially, because of the continuing security challenge, but also because
of the unregulated and unsanctioned abuse of their firearms by military and
police personnel, often resulting in deaths and injuries of civilians. In
Kampot, the Special Representative attended a mourning ceremony at which a
mother grieved for her son, himself a soldier, allegedly killed for no
apparent reason by a fellow soldier at a roadblock. Until the number of
available firearms is radically reduced in Cambodia, real power will
continue to be attached to guns, and many mothers, and others, will grieve.
VI. RECOMMENDATIONS
A. Right to health
65. The highest priority should be given to the increase by the Government
of the budget of the Ministry of Health, as well as to campaigns directed
at preventing the transmission of the human immunodeficiency virus (HIV),
which causes AIDS. The Special Representative welcomes the agreement of
the First Prime Minister to accept the position of the Honorary Chairman of
the Inter-Ministerial Committee for AIDS/STD Prevention and Control. There
is a need for wholehearted and active support of the national AIDS
programme, in consultation with the World Health Organization (WHO) and
other agencies. The Special Representative particularly recommends the
following priority areas:
(a) The highest priority should be given to the increase by the
Government of the budget of the Ministry of Health;
(b) In the prevention campaign against the spread of the HIV/AIDS virus,
interventions should be made to involve and train commercial sex workers in
safer sexual practices;
(c) The services to treat sexually transmitted diseases should be
increased;
(d) General public awareness should be promoted;
(e) The draft law on the kidnapping, trafficking and exploitation of
persons should be reviewed in close consultation with the Inter-Ministerial
Committee for AIDS/STD, WHO, the Centre for Human Rights, and other
relevant United Nations agencies;
(f) Appropriate public posters and advertisements should be restored, so
as to bring AIDS awareness to the attention of the general population and
to increase the availability and use of condoms.
B. Right to education
66. The Special Representative recommends that the highest priority be
given to the increase by the Government of the budget of the Ministry of
Education.
C. Right to housing
67. The Special Representative recommends that the following steps be
taken to improve the handling of the problems of squatters, in order to
ensure respect for their basic human rights:
(a) The City of Phnom Penh and other relevant municipalities should
develop and publish an urban plan clarifying proposed land use in areas
currently used by squatters;
(b) The squatters' representatives and communities should be consulted
in respect of the orderly resumption of areas of land occupied by
squatters;
(c) Land laws should be enforced in respect of the rights of persons who
have continuously occupied land peacefully for many years;
(d) Before any eviction is attempted, due notice should be given to the
squatters to permit peaceful removal of their property, discussion about
compensation and the provision of suitable alternative housing sites;
(e) Court orders should be required before any forcible, contested
eviction is attempted;
(f) Strict discipline by police, military and city officers should be
observed in the conduct of the eviction of squatters;
(g) Education for children in squatter communities should be organized
and provided.
D. Right to a healthy environment
68. The Government should continue to enforce the prohibition of logging
of timber without reforestation and the ban on exports of such timber. In
consultation with neighbouring countries, the Government should move
resolutely to tighten the controls on the illegal export of timber from
Cambodian territory.
E. New laws and practices
69. The Centre for Human Rights should continue vigilantly to monitor
draft laws and to provide technical advice to the Government on the
conformity of such laws with Cambodia's international human rights
obligations. The Centre for Human Rights should alert the Special
Representative concerning any draft laws which might raise serious human
rights concerns so that he can consider making representations to the
Government in the form of a Human Rights Recommendation. In particular, the
following proposals or draft laws should be reviewed: (a) draft law on
labour; (b) draft law on kidnapping, trafficking and exploitation of
persons; (c) draft law on pharmaceuticals; (d) draft law on
association; (e) draft law on nationality and refugees; (f) draft law on
land-mines; (g) the decree arising out of the Press Law; and (h) the
decree arising out of the Immigration Law.
70. The Centre for Human Rights, in consultation with the Ministry of
Justice, should offer an amendment to article 51 of the Law Regulating the
Civil Servants to remove the effective impunity granted to members of the
civil service against prosecution for certain criminal offences without the
approval of a superior. The article should either be repealed altogether by
the National Assembly or its operation confined to circumstances not
inconsistent with equality before the law.
71. The Government of Cambodia should introduce improved administrative
arrangements for cooperation between officials in different provinces to
secure the extradition (return) of persons accused or suspected of a
criminal offence, upon receipt of a warrant of request by a court or
prosecutor in another province. Consideration should be given to the
introduction of an enforceable summons for the attendance at legal
proceedings of a witness. The effective prosecution of criminal process in
particular should not be dependent upon the capacity of the court or
prosecutor, or the ability of the family of a victim, to pay the necessary
funds for the accused, or a vital witness, to be brought to court in a
serious criminal case. The Centre for Human Rights should offer its
technical assistance to the Ministry of Justice in proposing a draft of
such a law.
F. Independence of the judiciary
72. The Special Representative commends the steps being introduced for the
improved training of judges. In addition to those being pursued by the
Ministry of Justice, these include:
(a) The Judicial Mentors Programme, being introduced by the Centre for
Human Rights in consultation with the Ministry (see A/50/681/Add.1, para.
62);
(b) Lectures on relevant international human rights conventions and
provision by the Centre for Human Rights of translations of those
instruments into the Khmer language;
(c) The technical advice being given to Cambodian judges, prosecutors
and court officials by judges and lawyers sponsored by the International
Human Rights Law Group and provided by donor countries, including Malaysia.
The effectiveness of these programmes should be monitored by the Centre for
Human Rights in close consultation with the Ministry of Justice and the
judges, prosecutors and court officials concerned.
73. The Government of Cambodia should explore the possibility of paying
the judges and prosecutors of Cambodia a minimum salary which will ensure
that those with the will to be, and remain, scrupulously honest and
uncorrupted can do so. A salary of the equivalent of US$ 400 per month for
Cambodia's 135 judges has been proposed. The Government should explore the
possibility of subventions from the World Bank or other appropriate bodies
to permit the supplementation of judicial salaries to ensure judicial
independence and the rule of law.
74. In the event that the foregoing is not accepted, the Special
Representative recommends that the members of the Constitutional Council,
when appointed, the Supreme Court and the Court of Appeal should receive
the same salary at least as a member of the National Assembly. The
judiciary is the third branch of the Cambodian Government. The
Constitutional Council, when established, should enjoy a status, and an
opportunity for the independence and integrity of its members, no less than
that enjoyed by the members of the National Assembly.
G. Prisons and other custodial institutions
75. Urgent attention should continue to be given to the state of
Cambodia's prisons (see A/50/681/Add.1, paras. 40-43). The defects in the
condition and facilities of the prisons at Kampot and Kampong Cham,
disclosed in the present report, should be addressed. The Cambodian office
should continue (see A/50/681/Add.1, paras. 57-61), in dialogue with the
ministries concerned, to explore the possibility of international donations
to remedy the most glaring deficiencies in the current prison system and to
develop new and modern prison facilities with conditions of security,
cleanliness and humanity more closely approximating the prisons in other
countries of the region.
76. The Ministries of Justice and Interior should take steps to enforce
the minimum daily time for release from confinement in cells and to
sanction the failure or refusal of prison guards to comply. Administrative
discretion should be given to prison commanders, in exceptional
circumstances, to vary the actual hours of release from cells, provided a
specified minimum is allowed, by roster in the absence of any other
alternative, to each prisoner. Facilities for sport and exercise should be
required in every prison. Access to human rights NGOs and Defenders should
be provided without hindrance, provided proper notice and proof of identity
is given. The use of dark cells, shackles and leg irons and collective
punishments in prison should be absolutely forbidden and punished where it
is proved that they have occurred.
H. Press Law and freedom of expression
77. The Special Representative notes that a second journalists'
organization, the League of Cambodian Journalists, has been established in
addition to the Khmer Journalists' Association. The Centre for Human
Rights should continue to work with the Khmer Journalists' Association and
with the Cambodian Communication Institute and UNESCO and offer assistance
to the League of Cambodian Journalists, concerning the improvement of
standards and the safeguarding of the independence of the media and of
journalists' organizations in Cambodia.
78. The Centre for Human Rights should keep the concerns expressed by the
Special Representative in relation to the Press Law under review as that
law is brought into operation. In particular, if subordinate legislation
is introduced to define terms such as "national security" and "political
stability" in the law, the Centre for Human Rights should offer its
assistance in a way that will help to maximize the protection of freedom of
expression in Cambodia.
I. Right to be elected and to take part in government
79. In the absence of necessary constitutional and legal amendments
clearly authorizing such a course, the expulsion of members of the National
Assembly, upon their removal of political parties in whose interest they
were elected should cease.
80. Stimulated by the legal controversy following the expulsion of a
member from the National Assembly and the threatened expulsion of more
members and the urgent desirability of having an institution that provides
authoritative constitutional decisions in such cases, the Constitutional
Council should be established without further delay.
J. Vulnerable groups
81. The directives issued by the Ministry of Interior calling for the
holding in "immigration centres" and the immediate expulsion of illegal
aliens without due process of law should be rescinded in writing. A
nationality law with a full definition of a Cambodian citizenship and
consistent with the Constitution and Cambodia's international obligations
should be enacted as soon as possible. No mass detention or collective
expulsion of suspected illegal aliens should occur. Directives should be
issued confirming that each person's individual case will be individually
considered and determined on its own merits.
82. The Government should consider taking the following steps in
furtherance of the human rights of children in Cambodia:
(a) Laws relating to children should be reviewed to ensure their
compliance with the Convention on the Rights of the Child;
(b) The proposed Cambodian National Children's Council should assume the
responsibility of monitoring the implementation in Cambodian law and
practice of the requirements of the Convention of the Rights of the Child.
It would be highly desirable for the Council to include three NGO
representatives, as proposed in the sub-decree submitted to the Council of
Ministers;
(c) A high-level meeting attended by representatives of the World Bank,
UNICEF and international donor organizations should be summoned to consider
the provision to Cambodia of the special economic assistance necessary for
an effective attack on the impediments to the attainment of full human
rights for children in Cambodia;
(d) Judges, police, teachers and other relevant governmental personnel
should be given training in the requirements of the Convention on the
Rights of the Child;
(e) Special attention should be given, in the development of policies
for children, to the needs of ethnic minorities, rural children, orphans
and handicapped children;
(f) In the area of juvenile justice, the Centre for Human Rights should
assist the Government in ensuring that any new legislative or
administrative practices are consistent with the Convention on the Rights
of the Child and other relevant international guidelines in particular, the
Beijing Rules, the Riyadh Guidelines and the United Nations Rules for the
Protection of Juveniles Deprived of their Liberty. The age of criminal
responsibility should be established by law. Judges should be specially
trained to handle juvenile cases. Education should be provided to
juveniles in detention. The guidelines for the operation of the Youth
Rehabilitation Centre should be prepared in consultation with the Centre
for Human Rights and the relevant NGOs;
(g) Trafficking in or kidnapping of children, the sale of underage
children into prostitution and sexual exploitation of minors under the
legal age of consent should be punishable criminal offences. A task force
to monitor the foregoing problems should be established to include the
relevant NGOs, with the power to carry out advocacy for the protection of
children and to prepare legal and administrative policies and reforms. The
Special Rapporteur of the Commission on Human Rights on the sale of
children, child prostitution and child pornography should be engaged in
helping to tackle the growing problems of child sexual exploitation in
Cambodia. The proposed draft law on the kidnapping, trafficking and
exploitation of persons should deal specifically with the sexual
exploitation of children.
K. Reporting obligations
83. Cambodia should fulfil, without further delay, its reporting
obligations under the International Covenant on Civil and Political Rights,
the Convention on the Rights of the Child, the International Convention on
the Elimination of All Forms of Racial Discrimination and other conventions
with reporting obligations. The Centre for Human Rights should, as
requested, further assist the Ministry of Justice, the Inter-Ministerial
Committee and the Council of Ministers in order to secure the earliest
possible completion of the reports (see A/50/681/Add.1, paras. 81-85). The
attention of the Cambodian Government has been specifically drawn to the
necessity to finalize the report by the Cambodian Government to the
Committee on the Elimination of Racial Discrimination before 31 December
1995.
L. Security issues
84. The Centre for Human Rights should provide assistance, as required,
and closely monitor the introduction of a law to prohibit the use of land-
mines in Cambodia. The office of the Centre should give consideration to
ways in which the special concerns of Cambodia can be placed effectively
before the Treaty Review Conference in Vienna in September 1995.
85. The Government of Cambodia should institute a project aimed towards a
national plan for the recovery of firearms from the population. Such a
policy is necessary to reduce the incidence of violence involving the use
of guns, which continue to plague Cambodian society. Any such firearm
retrieval policy would need to utilize techniques of inducement (amnesty,
reward and destruction) as well as an effective policy of punishment for
illegal possession of firearms after the expiry of an amnesty. The Special
Representative recommends that the Government of Cambodia consult with
other countries, including those of the Association of South-East Asian
Nations (ASEAN), which may have relevant experience in the reduction of the
prevalence of firearms. They might offer Cambodia the benefit of their
experience. It is recommended that Cambodia set this project in motion so
that it can be introduced and enforced as soon as the security situation
permits.
86. In the meanwhile, strict regulations relating to the use of their
firearms by law-enforcement personnel (the police, the military, the
militia) should be adopted and effective enforceable mechanisms should be
devised to ensure the effective compliance with these regulations,
including by the use of sanctions. An effective implementation of such
measures would greatly contribute to curbing the number of human rights
violations, including killings and injuries, caused by abusive use by
security personnel of their firearms.
87. The Government should make it plain that the attacks on United Nations
personnel are condemned. It should ensure that all such attacks are
investigated promptly and followed up vigorously and that those shown to be
responsible are rendered accountable to the law. If the Government firmly
addresses this issue, the image and reputation of Cambodia, particularly
among United Nations and other international organizations, would be
further reinforced. A lack of resolute action by the Government in such
cases may be misunderstood as an official tolerance of these practices and
as an encouragement to further violence against United Nations and other
personnel working in Cambodia by elements bent on violence.
M. Ongoing technical advice and assistance
88. The Special Representative once again expresses his commendation to
the office of the Centre for Human Rights in Cambodia and its staff,
including the United Nations Volunteers (UNVs), consultants and judicial
mentors, for their dedicated work during the period under review. He also
pays tribute to the Cambodian and international human rights and other NGOs
as well as to other United Nations agencies, funds and programmes, notably
UNDP, UNV and the Office of the United Nations High Commissioner for
Refugees (UNHCR).
89. He recommends more regular consultations between concerned ministries,
such as the Ministries of Justice, Interior and Defence, and Cambodian
human rights NGOs. In particular, the Special Representative invites the
Government to consider the establishment of a regular consultative
mechanism, possibly a monthly or bi-monthly meeting between representatives
of concerned ministries and Cambodian human rights and other NGOs. Such a
mechanism would allow each party to understand the work, point of view and
concerns of the others, in an atmosphere of fruitful exchange and dialogue.
This would also help defuse potential tensions which can sometimes arise
from misunderstandings and lack of communication.
90. The Special Representative makes the following administrative
suggestions:
(a) There remains an urgent need to reduce the delays in the provision
of financial and personnel decisions to the Cambodia office from the
Centre's headquarters in Geneva. The creative administrative steps, urged
in previous reports, have still not been taken to ensure an appropriate
measure of autonomy of action, budgetary delegation and avoidance of delays
in the filling of vacant positions;
(b) In preparation for future missions of the Special Representative, a
pamphlet in the Khmer language should be prepared describing the mandate of
the Special Representative, the programme of technical cooperation of the
Centre in Cambodia and the activities of each to date. This would be of
particular help in the provinces where the work of the Centre is less well
known than in Phnom Penh;
(c) Particular tribute is paid to the UNVs and human rights assistants
posted at provincial offices in Siem Reap, Battambang and Kampong Cham.
The provincial offices have extended the effectiveness of the work of the
Centre (see A/50/681/Add.1, paras. 109-112). They have also greatly
enhanced the work of the Special Representative. Combined with the
Judicial Mentors Programme and appropriate liaison with government
agencies, other United Nations agencies, funds and programmes (ibid.,
paras. 118-134) and NGOs, these will enlarge the outreach of the work of
the United Nations for human rights in Cambodia, which remains a most
worthy undertaking.
Notes
1/ E/CN.4/1994/73 and Add.1.
2/ E/CN.4/1995/87 and Add.1.
3/ E/CN.4/1994/73 and Add.1.
4/ See General Assembly resolution 2200 (XXI), annex.
5/ A/46/61-S/22059.
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ANNEX I
Programme of the sixth mission of the Special Representative of the
Secretary-General for human rights in Cambodia, 5-16 August 1995
5 August
Arrival at airport
Working meeting with the staff of the Centre for Human Rights
Dinner with the Secretary-General's representative in Cambodia, Mr. Benny
Widyono
6-8 August: Field visit to Kampot Province
6 August
Departure to Kampot Province
Meeting with local human rights NGOs
Visit of Kampot provincial prison
7 August
Visit of a traditional music school for orphaned and handicapped children
Departure to Kep Municipality
Speech delivered by the Special Representative at a human rights training
seminar for police officers
Meeting with and briefing by the Governor of Kep
Visit to Chamkar Bei-Khmer Rouge defectors and their families resettlement
zone in Kep
Meeting with United Cambodian Communities (UCC) trained community leaders
Dinner with the Provincial Governor
8 August
Meeting with the representatives in Kampot of the International Human
Rights Law Group's court reform project
Meeting with Kampot Tribunal
Visit of several UCC development projects for vulnerable groups (widows,
war invalids, children)
Meeting with the Director of the Central Justice Office of the Provincial
Judiciary Police
Departure to Phnom Penh
9 August: Visit to Kampong Cham Province
Breakfast with Mr. Khieu Kannharit, Secretary of State for Information
Departure to Kampong Cham
Arrival in Kampong Cham provincial town
Meeting with local human rights NGOs
Lunch with United Nations and other aid agencies
Meeting with the provincial tribunal
Dinner with the provincial Deputy-Governor and his staff
10 August
Meeting with Mr. Hun Neng, Provincial Governor
Visit of the provincial prison
Departure to Phnom Penh
Meeting with Mr. Pin Sam Khon, President of the Khmer Journalists
Association
Meeting with Mr. Chhum Kanal, President of the League of Cambodian
Journalists
Meeting with Mr. Son Soubert, Second Vice-President of the National
Assembly
11 August
Breakfast with Mr. Gildas Le Lidec, Ambassador of France, and Mr. G.
Porcell, responsible for French technical and cultural cooperation with
Cambodia
Meeting with Mr. Loy Sim Chheang, First Vice Chairman of the National
Assembly, and the heads of several National Assembly Commissions on the
legal and technical aspects of the expulsion of MPs
Meeting with Mr. Ieng Mouly, Information Minister and President of the
Mines Action Centre
Meeting with representatives of United Nations agencies, funds and
programmes in Cambodia, ICRC and the European Union
Meeting with the diplomatic corps
Dinner with Prince Norodom Sirivuddh, Secretary-General of the FUNCINPEC
party
12 August: Children's Rights Day
Visit of Kolap 1 Government orphanage
Meeting with Mr. Suy Sem, Secretary of State for Social Affairs, Labour and
Veterans
Meeting with the Committee on the Convention on the Rights of the Child:
briefings on child sexual exploitation and trafficking, education, juvenile
justice
Lunch with Mr. Yim Po, President of the Cambodian Centre for the Protection
of Children's Rights
Meeting with Mr. Chhim Siek Leng, Mayor of Phnom Penh, and his staff
13 August
Meeting with heads of Cambodian human rights NGOs
Lunch with ASEAN ambassadors, hosted by the Ambassador of Indonesia
Meeting with the Urban Sector Group
Field visit to squatter settlements in Phnom Penh
Dinner with the Ambassador of Malaysia, Mr. Deva Mohd Ridzam
Night visit of Phnom Penh street children with the NGO Little Friends
14-16 August: Meetings with senior Government figures
14 August
Report drafting: Mr. Kirby
Lunch with the Ambassador of Indonesia, Mr. Taufik Rachman Soedarbo
Report drafting
Meeting with the Minister of Justice, Mr. Chem Snguon
Report drafting: Mr. Kirby (continued)
15 August
Meeting with the Co-Minister of Interior, Mr. Sar Kheng
Report review with the staff of the Cambodia Office
Press conference at the Foreign Correspondents Club
16 August
Meeting with the President of the National Assembly and Chairman of the
Cambodian People's Party, Mr. Chea Sim
Audience with His Majesty the King, Preah Bat Samdech Preah Norodom
Sihanouk Varman
Departure to the airport
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ANNEX II
Human rights recommendations 1994-1995 a/
[Original: English and French]
HR REC 17/94 b/ - August 1994: Continued illegal detention of nine
suspects in connection with 2 July coup attempt. The Ministry of Foreign
Affairs acknowledged receipt, informed the Special Representative that his
recommendations had been transmitted to relevant authorities and that
response by them would be forwarded. No response was received. The nine
suspects were released.
HR REC 18/94 - August 1995: Ministry of Interior circulars relating to
NGOs' freedom of association and of expression. A Ministry of Foreign
Affairs reply dated 13 October 1994 assured the Special Representative of
the commitment of the Government to respect freedom of association and
expression as guaranteed by the Constitution. A telegram by the Ministry
of Interior to provincial and municipal governors clarified the directives:
new NGOs only are required to seek authorization from the Ministry of
Interior to operate; NGOs are not requested to provide reports on their
activities and on the composition and number of their staff; and no
authorization is required to organize meetings or training sessions but the
authorities solely need be informed about them. A law on associations is
currently being drafted by the Ministry of Interior.
HR REC 19/94 - 16 September 1994: Immigration Law. The Ministry of
Foreign Affairs acknowledged receipt and assured the Special Representative
that the law would be implemented in full respect of the Cambodian
Constitution and international human rights conventions acceded to by
Cambodia. Several recommendations, including one on increased cooperation
with the office in Cambodia of the Centre for Human Rights, were considered
and accepted by the Ministry of Interior. A consultant provided by the
Centre for Human Rights is currently working with the Ministry of Interior
to assist in drafting subordinate legislation.
HR REC 20/94 - 29 September 1994: Attack on Centre's staff member Luis
Oliveros and his five-year-old daughter Monica. The then Minister for
Foreign Affairs alerted the National Police and himself took an active part
in the search and rescue of Monica Oliveros after she was abducted by armed
men. The Ministry of Foreign Affairs acknowledged receipt of the letter on
25 October 1994 and condemned the attack. It assured the Special
Representative of prompt action against the perpetrators, if found.
Similar letters of condemnation by His Majesty the King and the First Prime
Minister were addressed to the Special Representative. The perpetrators,
alleged to be military personnel, were identified by the police. However,
no known action against them has so far taken place. There is no
indication that the police are seriously pursuing their investigation. The
matter was again raised by the Special Representative during his sixth
mission with the Minister for Foreign Affairs and the Minister of Interior.
HR REC 21/94 - 16 September 1994: Assassination of journalist Noun Chan;
deterioration of situation of press freedom. The Ministry of Foreign
Affairs responded on 25 October 1995, condemning the assassination and
informing the Special Representative that an investigation had been ordered
into the murder (see main document, para. 46). The letter by the Ministry
of Foreign Affairs condemned what it regarded as "abuse of press freedom"
by journalists in the form of "public insults, slanders, use of filthy
language and publication of pornographic materials". It stated that
Cambodian public opinion felt that "there is too much freedom of the press
in Cambodia, to the point of becoming an anarchy in which freedom will
suffer and perish".
HR REC 22/94 - 27 October 1994: [Second letter about] attack against
United Nations Centre staff member and his five-year-old daughter Monica.
[Action taken; see above]
HR REC 23/94 - 26 September 1994: Warnings to human rights NGOs (in
connection with the murder of Noun Chan). No formal response. No action
was taken against the concerned NGOs. In a public statement dated 29
September 1994, the First Prime Minister said the Cambodia office of the
Centre for Human Rights was "more concerned with its investigation into a
case that is already two years old c/ than with the most unwarranted and
dubious accusations emanating from [human rights] organizations whose
mission is precisely to ensure respect for the basic rights of citizens.
It is unfortunate [...]"
HR REC 24/94 - 18 November 1995: Draft press law. The Ministry of Foreign
Affairs acknowledged receipt and informed the Special Representative that
his recommendations had been shared with concerned authorities and that it
would forward any response by them. Several recommendations were
incorporated in the draft by the Ministry of Information. No other formal
response was received.
HR REC 25/94 - 28 November 1994: Freedom of expression: Two cases
(closure of the newspaper Odom Kete Khmer; suppression of the TV programme
"The public opinion". The Ministry of Foreign Affairs acknowledged receipt
on 12 December and informed the Special Representative that his letter had
been passed on to relevant authorities and that it would forward any
response by them. No known action was taken. No formal response was
received. Odom Kete was allowed to reopen a week before the fifth mission
to Cambodia of the Special Representative. However, it was shut down again
soon afterwards. The newspaper recently resumed publication pending an
appeal against a conviction. It is subject to new court proceedings.
HR REC 26/94 - 27 December 1994: Killing of journalist Sao Chan Dara -
Threat of violence to the newspaper Preap Norm Sar; letter of the Ministry
of Information dated 16 December 1994 concerning the publication of
"obscene" stories. No formal response was received. A suspect, army Col.
Sat Soeun, was arrested upon action by the Ministry of Interior and
detained in connection with the murder of the journalist. He was tried in
June 1995. He was acquitted of the charges in a trial before Kampong Cham
provincial court. No further action was taken. There is no indication
that the murder continues to be investigated.
HR REC 1/95 - 30 January 1995: Alleged threats against certain members of
the National Assembly. No acknowledgement of receipt. No formal response.
The Second Prime Minister, Mr. Hun Sen, declined to comment during a
meeting on 25 January at which the Special Representative raised the
matter. The Government made a statement before the United Nations
Commission on Human Rights in February 1995 stating that: "With regard to
threats against members of the National Assembly, no such threat exists
[...] However, there are certainly one or two members of the Assembly who
insult the Government and the army and, out of fear, tell everyone that
they have been threatened."
HR REC 2/95 - 2 February 1995: Draft press law. No acknowledgement of
receipt. No formal response. The main recommendations were not included in
the draft before it was enacted by the National Assembly.
HR REC 3/95 - 13 April 1995: Protection for freedom of expression and
opinion of journalists. The Ministry of Foreign Affairs acknowledged
receipt on 2 May 1995. It stated that the recommendation had been passed
on to relevant authorities and that any response by them would be forwarded
to the Special Representative. No further response. No known follow-up.
HR REC 4/95 - 13 April 1995. Reported killing of Vietnamese civilians;
lack of prosecution of perpetrators. The letter drew the Government's
attention to a killing allegedly perpetrated by non-Khmer Rouge elements,
as appeared to be the case in at least three reported incidents in 1994.
The Ministry of Foreign Affairs acknowledged receipt on 2 May. It stated
that the recommendation was being shared with relevant authorities and that
it would inform the Special Representative of any follow-up. No response.
No follow-up. No known action.
HR REC 5/95 - 22 May 1995: Proposed law for the regulation of the legal
profession. No acknowledgement of receipt. No formal response. The
Special Representative's main recommendation that the profession of human
rights Defender be formally recognized was incorporated in the draft law
adopted by the National Assembly, although for a maximum duration of two
years.
HR REC 6/95 - 30 May 1995: Status of members of the National Assembly. In
a reply addressed in his capacity as President of the FUNCINPEC party,
Prince Norodom Ranariddh, the First Prime Minister, rejected the Special
Representative's recommendations as unwarranted interference in the
workings of Cambodia's sovereign National Assembly. The letter contrasted
the position of the Special Representative, as stated in his recommendation
(respect for freedom of expression of members of the National Assembly, for
the Constitution, the Electoral Law and the internal rules of the National
Assembly) with that attributed to the Secretary-General, as had been made
public by the Secretary-General's representative in Cambodia (non-
interference in domestic matters). The member of the Assembly was expelled
from the Assembly on 22 June 1995.
HR REC 7/95 - 16 June 1995: Draft press law. No acknowledgement of
receipt. No formal response. No known action (see above).
HR REC 8/95 - 26 July 1995: Alleged attacks on guards of former Minister.
The First Prime Minister replied on 12 August that the Special
Representative's recommendations have been passed on to "competent military
authorities for investigation and report" and that he would be informed of
any development about the matter. No known action as of the date of
preparation of the present report.
HR REC 9/95 - 15 August 1995: Arrest of balloon flyers distributing
pamphlets. The Minister for Foreign Affairs, Mr. Ung Huot, acknowledged
receipt of the letter at a meeting with the Special Representative on 16
August 1995 during his sixth mission to Cambodia. However, he did not
comment on the substance of the matter as the case was being heard on the
same day by the Phnom Penh Municipal Tribunal.
Notes
a/ For the previous human rights recommendations, see A/49/635, annex
III.
b/ HR REC = human rights recommendation.
c/ I.e., the case of the secret military detention and execution site at
Cheu Kmau.
/... A/50/681
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A/50/681
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ANNEX III
Letter dated 13 October 1995 from the Royal Government of
Cambodia to the United Nations Centre for Human Rights
I apologize for the delay in our comments on Mr. Michael Kirby's draft
report on the human rights situation in the Kingdom of Cambodia to be
submitted to the General Assembly, owing to the fact that we received it
quite late.
My Government has taken careful note of all points and recommendations
made by the Special Representative for the implementation and promotion of
human rights in Cambodia. As we shared most of his remarks and
recommendations, we also wish to bring to his attention the following
observations which we hope will, to a large extent, help make this draft
report even more balanced.
In fact, the information and clarifications provided by the Cambodian
Government officials at both the central and local levels with Mr. Michael
Kirby during his sixth mission to Cambodia hopefully would give him a
better understanding and comprehensive picture of the human rights
situation in Cambodia as well as the unchanging and firm commitment of the
Royal Government of Cambodia to work for the protection and promotion of
human rights. However, we still ascertained that this draft report,
firstly, contained a number of allegations levelled against the Royal
Government that were not only contradictory with the reality but also
outdated. Secondly, some of the wordings used in the draft report were not
appropriate and consistent with the political will and efforts made by the
Royal Government in the implementation and improvement of the human rights
situation. Thirdly, a number of criticisms against the Royal Government
were unclear and non-specific. And finally, there were also a number of
unsubstantiated assertions which appeared to be based only on rumour and
hearsay.
- Paragraph 10: This paragraph should be written as follows:
"Unfortunately, it did not prove possible for the Co-Prime Ministers to
receive the Special Representative due to the fact that the schedule of the
First Prime Minister was so tight while the Second Prime Minister was
absent from the country for health reasons. However, ... contemplated."
- Paragraph 11: This paragraph should be written as follows: "... If
possible, technical assistance should be offered to the institution(s) to
be set up by the Royal Government of Cambodia to assist in analysing the
information on human rights in Cambodia". Institutions(s) here means the
mechanism to be put in place by the Government.
- Paragraph 13: Owing to the lack of communication between the Royal
Government and the Centre, there are some actions which have already been
taken by the Government with regard to the recommendations made in earlier
reports but which the Centre was not aware of. Therefore, this paragraph
should read as follows: "Due to the lack of communication between the
Government and the Centre, it seems that some actions have already been
taken by the Royal Government with regard to the recommendations made in
earlier reports but the Centre was not informed of. In other cases,
implementation ... recommendations".
- Paragraph 13, subparagraph (e): It would be better if this
subparagraph acknowledged the causes which hampered the Government in
responding to the recommendations and reports of the Special
Representative, rather than jumping to such a conclusion. Therefore,
subparagraph (e) should read as follows: "The Special Representative hopes
that, if material and financial resources are made available to the
Government, the latter will be in a better position to timely respond to
his recommendations and reports."
- Paragraph 16: For this paragraph, the word "harass" is not
appropriate. We wish to change the word "harass" to "contain and control".
In the same sentence, the report says: "to remove public posters promoting
the use of condoms". We wish to explain to you that no instructions have
been given by the Government to the local authorities to do so. Therefore,
we wish to correct that phrase to read "the authority should ensure that
these posters will not be removed".
- Paragraph 16, middle of paragraph: "The Special Representative ...
was nearing completion". The Council of Ministers had approved such a
draft law. It is currently under the National Assembly's Committee to
review it. We have no authority to tell the National Assembly what to do.
However, according to our experience, if the Committee disagreed, they
would reject this draft and require us to amend it.
- Paragraph 16, end of paragraph: Regarding HIV/AIDS, we appreciated
very much the comments made by the Special Representative to welcome a
decision of Cambodian journalists to improve and increase media reportage
of the issue of HIV/AIDS. During the meeting with the Director of the
Centre for Human Rights Cambodia office, we also reported that efforts have
been made by the Government to include advertisements on the radio, in
local newspapers and local TV as well. This is a very intensive effort to
increase the awareness of the population on the issue. Yet it is at the
high level of the Royal Government of Cambodia's efforts to determine the
fight against this communicable disease including the Committee which has
been established and chaired by His Royal Highness the First Prime
Minister. Therefore, we do not share the view of the report that the
national campaign against HIV/AIDS has been set back, as has been reported
by the Special Representative.
- Paragraph 18: The report has said that health-care service staff
charge substantial sums for their services. The Ministry of Health has
been instructed to conduct an investigation on the matter. The result of
this investigation will be brought to your attention through the Centre for
Human Rights Cambodia office.
- Paragraph 24: We request a correction on the settlement on the land
continuously for more than five years, which gives entitlement to legal
ownership of the land under the State of Cambodia land law, to reflect the
exact wording of such law.
- Paragraph 30: We request inclusion of the latest efforts made by the
Royal Government, on 30 April 1995, including the utilization of air force,
to enforce the ban on log exports. And we believe this firm commitment of
the Royal Government to protect our environment deserves to be
complimented.
- Paragraph 32: The response to the concerns over the Press Law are
included in the annexes made by the Ministry of Information.
- Paragraph 32: "... Law Regulating the Civil Servants, passed in
October 1994, contains an article 51 that provides a measure of immunity
from prosecution to all civil servants in certain cases". We wish to
clarify this point as follows. Those who are caught red-handed will be
prosecuted immediately. However, this law also states that those civil
servants who are being accused will need to have the consent and the
opinion of their supervisors.
- Paragraph 33: "... As originally proposed, this law would have
inhibited or curtailed the work of the human rights Defenders who have been
trained to represent accused persons in Cambodian courts." The current
Cambodian law on the Bar Association has very strong requirements that the
Defenders (lawyers) should meet very specific qualification in order to be
able to represent the accused persons in Cambodian courts.
Paraprofessionals do not have such qualifications.
- Paragraphs 37 and 49 (a): These two paragraphs related to the
expulsion of a member of the National Assembly. The Special Representative
also mentioned that he had had a meeting with the First Vice-Chairman of
the National Assembly, H.E. Loy Sim Chheang, and the Chairmen and other
members of the Commission of the National Assembly, on 11 August 1995. The
Special Representative also admitted that the explanations made by those
National Assembly officials were at a lengthy session (approximately four
hours). We strongly believe that the Special Representative understood the
situation perfectly. Unfortunately, the Special Representative seemed not
to be satisfied and has still included this matter in his report.
Final comments: On the one hand, we appreciate very much the concerns
expressed by the Special Representative on human rights in every field and
domain. On the other hand, we still believe that this draft report should
be written in a balanced manner in order to reflect the many efforts made
by the Royal Government of Cambodia at a time when the latter is still
facing human, material and financial constraints. Furthermore, reading
this report leads us also to have the impression that the Special
Representative is acting as an authoritative law-enforcement officer, that
is to say, to watch us for the discrepancy area but not to provide enough
technical assistance to help implement, protect and improve the human
rights situation which has been so far much better.
I kindly request you to forward this letter to the Special Representative
of the United Nations Secretary-General, Mr. Michael Kirby, and circulate
it as an official document of the current fiftieth session of the United
Nations General Assembly.
(Signed) Nady TAN
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